Excerpt:.....right to pass an order of discharge or dismissal subject to two conditions, namely, (i) payment of wages for one month; it is now well settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction; there was no failure to comply with the provision in this respect. the relationship of the employer and the employee can be effectively terminated in such a case not merely by the decision of the employer to terminate the employee's services but by the communication of the said decision to the employee; reference was made to form x in the rules framed under the act and it was submitted that before the application was made it was necessary that the wages for one month should have been paid or tendered, i do not think..........to the 2nd respondent on8-12-1966.3. the tribunal held that the dismissal, the payment of one month's wages, and the application for approval must form part of the same transaction and since the application was filed on 15-7-1966 hut the order of dismissal was passed on 7-6-1966 and the one month's wages were tendered only on 8-12-1966, they do not form part of the same transaction and so the application was not mainlainable.4. in strawboard manufacturing co. v. gobind, 1962-1 lab lj 420 = (air 1962 sc 1500) the supreme court held that the proviso to section 33(2)(b) requires the emplover to do three things, namely, (i) dismissal or discharge of the employee; (ii) payment of wages; and (iii) the making of the application as part of the same transaction. in that case, the employer.....

Judgment:ORDER

K.K. Mathew, J.

1. This is an application for the issue of an appropriate writ or order quashing the order of the Industrial Tribunal, Calicut, passed under Section 33(1)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), refusing approval to the action taken by the management in dismissing the 2nd respondent herein from the service of the petitioner.

2. The order dismissing the 2nd respondent was passed by the management on 7-6-1966. It was communicated to the 2nd respondent on 8-12-1966. The application under Section 33(2)(b) of the Act for approval of the action was filed on 15-7-1966. The one month's salary was sent by money order to the 2nd respondent on8-12-1966.

3. The tribunal held that the dismissal, the payment of one month's wages, and the application for approval must form part of the same transaction and since the application was filed on 15-7-1966 hut the order of dismissal was passed on 7-6-1966 and the one month's wages were tendered only on 8-12-1966, they do not form part of the same transaction and so the application was not mainlainable.

4. In Strawboard Manufacturing Co. v. Gobind, 1962-1 Lab LJ 420 = (AIR 1962 SC 1500) the Supreme Court held that the proviso to Section 33(2)(b) requires the emplover to do three things, namely, (i) dismissal or discharge of the employee; (ii) payment of wages; and (iii) the making of the application as part of the same transaction. In that case, the employer decided to dismiss the employee after making an enquiry. It then passed the order of dismissal on 1st February, 1960, and made 'n application on the same day to the Tribunal for approval of the action taken. The tribunal took the view that the application should have been made before dismissing the employee. This view was held to be wrong by the Supreme Court. The contention before the Supreme Court was that the application for approval must have been made before the employer took action. The court said:

'It seems to us, therefore, that when the proviso speaks of an application for approval of the action taken, there is the order of actual discharge or dismissal made by the employer and it is for the approval of this order that the application is to be made. This is borne out by Form X under Rule 60 of the rules framed under the Act which corresponds to Form XV under Rule 31 of the Uttar Pradesh Rules. Further, the use of the word 'approval' in the proviso also suggests that something has been done by the employer who seeks approval of that from the Tribunal. If the intention was, that in view of the proviso, the employer could not pass the order of dismissal or discharge without first obtaining the approval of the tribunal, we see no reason why the words in the proviso should not have been similar to those in Sub-sections (1) and (3), namely, that no workman shall be discharged or dismissed without the express permission In writing of the authority concerned. The change, therefore, in the language used in the proviso to Sub-section (2) (b) clearly shows in our opinion that the legislature intended that the employer would have the right to pass an order of discharge or dismissal subject to two conditions, namely,

(i) payment of wages for one month; and

(ii) making of an application to the authority concerned for approval of the action taken.

The use of the word 'approval' also suggests that what has to be approved has already taken place, though sometimes approval may also be sought of a proposed action. But it seems to us in the context that the approval here is of something done, as otherwise it would have been quite easy for the legislature to use the words 'for approval' of the action proposed to be taken, that some action has been taken and it is that action which the employer wants to be approved by his application. The difference between Sub-section (1) and Sub-section (2) is therefore that under Sub-section (1), the employer proposes what he intends to do and asks for the approval of the action taken from the authority concerned by his application. There can therefore be no doubt that subsection (2) (b) read together with the proviso contemplates that the employer may pass an order of dismissal or discharge before obtaining the approval of the authority concerned and at the same time make an application for approval of the action taken by him .....'

'It is now well settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction; and stated generally, the employer must either pay or offer the salary for one month to the employee before passing an order of his discharge or dismissal, and must apply to the specified authority, for approval of his action at the same time, or within such reasonably short time thereafter as to form part of the same transaction.'

6. In Balakrishna Bhiva v. Industrial Tribunal, 1967-1 Lab LJ 637 (Bom) the order of dismissal was passed on 19th April, 1963. It was communicated to the employee on 24th April. The application for approval of the action was made on 29th April. The Bombay High Court said:

'The application could, therefore, have been prepared and made to the tribunal at or about the same time- It was not necessary, to wait until the petitioner had been served. Even after the petitioner was served there was five days further delay in making the application or if the holidays are excluded at least three days' delay, which has not been satisfactorily explained. On the facts of this case, we do not think that it can be said that the making of the application was part of the same transaction, by which the petitioner was dismissed from service.'

6-A. Counsel for the petitioner relied upon the ruling reported in State Bank of Bikaner v. Balai Chander Sen, 1963-2 Lab LJ 657 = (AIR 1964 SC 732) in support of the contention that an application made before an order of dismissal takes effect is maintainable, and therefore, the application made in this case before the date when the order of dismissal took effect was competent. He also argued that the money order of one month's wage was sent on 8-12-1966, and therefore, it became part of the dismissal, as the dismissal took effect only on 8-12-1966, when the order of dismissal was communicated to the 2nd respondent.

7. In 1963-2 Lab LJ 657 = (AIR 1964 SC 732) it was held that an application under Section 33(2)(b) for approval can be made even before the actual action is taken by the management and that the latest point on which the application should be made is the date of actual dismissal of the employee. The Court distinguished the decision in 1962-1 Lab LJ 420 = (AIR 1962 SC 1500) and said:

'We see nothing in principle against the employer making an application underSection 33(2)(b) for approval of the proposed action before the actual action is taken. Such a course on the part of the employer would, if anything, be more favourable to the employee and would not in our opinion be against the provisions contained in Section 33(2)(b). We are therefore of opinion that the labour court was wrong in holding that an application made by an employer under Section 33(2)(b) for approval of the action he proposes to take is not entertainable and that such an application must necessarily be made after the action of which approval is sought to be taken. All that the Straw-board Manufacturing Company case, 1962-1 Lab LJ 420 = (AIR 1962 SC 1500) lays down is that the application can be made after the action of which approval is sought has been taken and that when this happens the three conditions in the proviso to Section 33(2)(b) must be shown to be parts of the same transaction. But if an employer chooses to make an application under Section 33(2)(b) for approval of the action he proposes to take and then takes the action we find nothing in Section 33(2)(b) which would make such an application not maintainable. Such an application in our opinion, would not be contrary to the provisions of Section 33(2)(b), read with the proviso thereof and would be maintainable.'

This decision is a clear authority for the proposition that an application under Section 33(2)(b) for approval of the action can be made before the action becomes effective. In this case, as already stated, the management after conducting the enquiry passed the order of dismissal on 7-6-1966. The order was communicated to the employee only on 8-12-1966. The application was made on 15-7-1966, after the decision to dismiss the employee was made, but before it was communicated to him. The decision became effective only when it was communicated to the employee on 8-12-1966; and since the application was made before the decision was communicated to the employee, it was maintainable. The question whether a tender of wages for one month before the order of dismissal came into force would be sufficient was considered in Delhi Transport Undertaking v. Industrial Tribunal. 1965-1 Lab LJ 458 at p. 461 = (AIR 1965 SC 1503 at p. 1505). There, the tender of the wages for one month was made on 30th October, 1961, and that was before the order of dismissal came into force by communicating it to the employee. The court said:

'The tender was thus made on the 30th before the order of dismissal came into force and the wages would have been paid either on the 30th or on the 31st had Hari Chand cared to receive them. In any event, the amount was sent to him by money order Immediately afterwards andthe application for the approval made 3days prior to the date of dismissal mentioned the fact that the amount was beingpaid to him ......................

The proviso does not mean that the wages for one month should have been actually paid, because in many cases the employer can only tender the amount before the dismissal but cannot force the employee to receive the payment before dismissal becomes effective. In this case the tender was definitely made before the order of dismissal became effective and the wages would certainly have been paid if Had Chand had asked for them. There was no failure to comply with the provision in this respect.'

8. In Ritz Theaire V. Its Workmen, (1962) 2 Lab LJ 498 at p. 605 = (AIR 1963 SC 295 at p. 301) the question arose as to when an order of dismissal comes into force. Gajendragadkar J. (as he then was) observed thus:

'The relationship of the employer and the employee can be effectively terminated in such a case not merely by the decision of the employer to terminate the employee's services but by the communication of the said decision to the employee; and as it happened, such a communication had not been made even till the date when the award was pronounced. We are told by Mr. Andley today, and Mr, Sastri concedes, that effective steps have now been taken by the employer to terminate the services of Mohd. Mia and that from today in any case be is not an employee of the appellant.'

9. It was argued for the 2nd respondent that the wages for one month were not paid before the application was filed and that on that ground the application was not maintainable. The proviso to Section 33(2)(b) says:

'Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.'

In this case, the wages for one month were tendered by money order on the day on which the order of dismissal took effect. That was a sufficient compliance with the proviso. If an application under Section 33(2)(b) for approval can be made after a decision to dismiss an employee has been taken, and before it has not become effective by communication to the employee, it must necessarily follow that an application can be filed before the wages for the month are tendered to the employee; for, the wages need be paid only when an employee is dismissed, which takes place only when the order of dismissal is communicated to him and theapplication for approval can be filed before the decision to dismiss takes effect according to the authorities referred to above. Reference was made to Form X in the rules framed under the Act and it was submitted that before the application was made it was necessary that the wages for one month should have been paid or tendered, I do not think that the Form is intended to cover a situation like this. I, hold that the wages for the month need not have been paid or tendered in this' case at the time of the decision of the management to dismiss the worker, namely on 7-6-1966, and that it was also unnecessary that they should have been paid before the application for approval was made- The wages were tendered when the order became effective and that was sufficient.

10. It was contended on behalf of the 2nd respondent that the case must he remitted to the Tribunal for a consideration of the question whether the wages for the month were actually paid to the employee. The finding of the Tribunal is that wages for the month have been tendered to the employee. I do not therefore think that the case should be remitted to the Tribunal,

11. I quash the order of the Tribunal and allow the writ petition. No costs.